WCDefenseCA

Happy Monday, dear readers!

Your humble blogger brings you a rather unfortunate writ denied case this morning, that of Greenbrae Management/SCIF v. WCAB/Torres.

This is yet another in those long line of cases where the applicant prevailed on the theory that a “forceful blow” was sufficient to satisfy the “violent act” requirement of Labor Code section 4660.1.

In this case, applicant sustained an admitted injury in 2014 when he fell 20 feet from a tree he was trimming.  The question was, of course, whether applicant should be entitled to increased permanent disability based on the psychiatric injury resulting as a compensable consequence from the fall.

The WCJ ruled that a fall from a tree was not a “violent act” and thus, as there does not appear to be proof that the injury was “catastrophic”, the additional psyche-based PD was barred.  The WCAB reversed and the Court of Appeal has now denied review.

Your humble blogger previously articulated the argument that if a “forceful blow” was sufficient to satisfy the definition of violent act as contemplated by the labor code, then every forceful blow would be an “extraordinary” employment event, as previously defined by the Court of Appeal, so the 6 month employment rule would never work to bar a fall or being hit forcefully.

Here’s hoping that we get some contrary and binding guidance soon.  The WCAB’s reasoning that this doctrine is consistent with legislative intent to limit compensable consequence psyche injuries is weak medicine for defendants, who now see everything short of a cumulative trauma being claimed as either a “violent act” because of its forceful mechanism or “catastrophic” in its effect on the injured worker.

In the meantime, your humble blogger respectfully submits that we should continue litigating these cases.  A forceful blow is not a violent act – at last not according to any binding authority.  If the Court of Appeal had to issue a published opinion concluding that a wet sidewalk is not “extraordinary” on a rainy day, perhaps it will also have to issue a publish opinion clarifying that a violent act, within the meaning of the Labor Code, requires a third-party with intent to do harm (or something of a quasi-criminal nature).

Happy Friday, dear readers!

Did you know your humble blogger is a lifetime victim of violence?  For all my clumsy, clumsy life I’ve fallen from swings and slides, bumped into walls and fellow-pedestrians, and, once, even fell out bed while trying to deny claims in my sleep.

What’s that, dear readers? Are you saying that my perfectly sheltered life is not one riddled with violence?  Well, the WCAB would disagree with you.

The case making the rounds this week is Larsen v. Securitas Security Services, in which a post January 1, 2013 injury involving a vehicle vs. pedestrian car accident included a psyche PD add-on.  But, as we all know, Labor Code section 4660.1(c) precludes PD add-on for psyche compensable consequence claims, unless the injured worker sustains a catastrophic injury, or is the victim of a violent act or is directly exposed to a significant violent act.

But the Larsen case involves a security card struck by a car in a parking lot.  No, dear readers, this wasn’t during a get-away and applicant was not bravely stopping jewel thieves from escaping with the orphanage’s recently donated diamonds.  This was a car accident that happened to happen at work.

The WCJ found the act of the car accident as violent, and the WCAB affirmed, rejecting defendant’s theory that “violence” requires criminal or quasi-criminal violence.  Instead, the WCAB relied on Black’s Law Dictionary as defining violence as “[o]f, relating to, or characterized by strong physical force <violent blows to the legs>. 2. Resulting from extreme or intense force <violent death>.  3.  Vehemently or passionately threatening <violent words>.

The panel interpreted this to mean that being struck from behind with enough force to be violent, and render applicant a victim of a violent act.

Your humble blogger respectfully disagrees, both with the result and the reasoning.  The violent act language is not new, and did not become law as part of SB-863.  The Labor Code included “violent act” language (and still does) as part of Labor Code 3208.3(b)(2) which states “in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant act…”  and then reduces the threshold of compensability from acts of employment being “predominant cause” to “substantial cause.”

In Clacher v. WCAB (80 CCC 182), a 2015 writ denied case, the WCAB found that “violent act” included applicant being “forcefully punched on her back and knocked on the floor by a coworker.”  In Soberon v. Orange County Pizza (2013 CCC Cal. Wrk. Comp. P.D. Lexis 453), applicant was assaulted by her employer.

In Gambina v. Canyon Market(2013 Cal. Wrk. Comp P.D. Lexis 304), the “violent act” was a store robbery including the applicant being shot.

Let’s look at the opposite, though – was the threshold of actual events of employment being predominant as to all causes lowered to “substantial cause” just because the injury was a violent blow?

In Duong v. RGW Construction (2010 Cal. Wrk. Comp. P.D. Lexis 93), an injured worker fell when the scaffolding upon which he was working suddenly collapsed, resulting in spine and upper extremity injuries.  But in that case, the WCJ and the WCAB agreed: the standard for whether the compensable consequence psyche claim actually was compensable was “predominantly caused.”  If such an event, one which was caused by another co-worker disassembling the scaffolding as applicant worked upon it, could be considered a violent act… wouldn’t the standard be “substantial cause”?

Now, here’s another idea… wouldn’t an act of violence be extraordinary in the workplace? It sure is! In Wal-Mart Stores, Inc., v. WCAB/Garcia, applicant sustained an “orthopedic injury to her back” but that injury was not enough to defeat a six-moth employment rule.  But, the Court of Appeal held that “[i]n our view, the ‘sudden and extraordinary’ language is limited to occurrences such as gas main explosions or workplace violence – the type of events which would naturally be expected to cause psychic disturbances even in a diligent and honest employee.” (Footnote 9).

Well, in the recent case of Dreher v. WCAB (where the Court of Appeal ruled that a wet sidewalk was not extra-ordinary), the applicant sustained very serious and extensive orthopedic injuries following his fall.  Even if the sidewalk being wet wasn’t sudden and extraordinary, couldn’t it be defeated in that case by claiming the fall was an act of violence, and thus, by the Wal-Mart court’s opinion, an “extraordinary” event?  The same can be said for a 250 pound truss falling on an injured worker; or a fall from a 24’ ladder.

In all these cases, don’t we see a pattern here the courts, whether panel decisions or citeable opinions by the Courts of Appeal recognize that there is a legal importance to acts of violence and reject the definition that a violent blow is violence as contemplated by the Labor Code?

What do you, dear readers? Is every single injury, other than a cumulative trauma, an act of violence?

Your humble blogger wishes you a restful and reflective weekend.

Happy Wednesday, dear readers!

As my beloved followers, subscribers, and even the occasional anonymous lurker who is too shy to drop me a line might recall, this blog previously reported on the case of Dreher v. WCAB, wherein the WCAB held that a wet sidewalk constituted an “extraordinary” condition for the purposes of defeating Labor Code section 3208.3(d)’s requirements for psyche claims following less than six months of employment.

In that case, a split WCAB panel held that because applicant was surprised by how wet the sidewalk was, it constituted an “extraordinary” condition, and allowed him to recover on his psyche claim.  The “extraordinary” nature of the claim was further bolstered by extraordinarily catastrophic injuries resulting from the event.

Well, the Court of Appeal has weighed in, and in a published decision, reversed.  The COA expressly rejected the notion that analysis of an event as extraordinary (or not extraordinary) does not turn on “the nature of the injuries resulting from the incident.”  Continuing, the opinion reads “although Dreher’s injury was more serious than might be expected, it did not constitute, nor was it caused by, a sudden and extraordinary employment event… Dreher’s slip and fall was the kind of incident that could reasonably be expected to occur.”

With respect to burden of proof, the Court of Appeal held that “[t]o the extent the WCAB’s decision can be read to place the burden of proof on the employer to demonstrate that the accident was the result of a ‘routine or ordinary employment condition,’ it was incorrect.”

So what do we take away from this?  The Court of Appeal, in a published and thus citeable decision, held that the burden of proof on the extraordinary nature of the mechanism of injury falls squarely upon the shoulders of the injured worker.

Furthermore, it appears that the extent of the injuries resulting from the mechanism are entirely irrelevant to the analysis: effects from a stubborn papercut to total and permanent paralysis do not affect the compensability of a recent hire’s psyche claim.

All in all, dear readers, not a bad bit of news for the defense community.

And then, suddenly… a sidewalk!

Have you had an opportunity, dear readers, to review the case of Dreher v. Alliance Residential?  It’s a recent panel decision that was denied review by the Court of Appeal.  Applicant sustained an admitted physical injury, but defendant contested the psyche claim, after applicant slipped and fell on his 74th day on the job.  Apparently, it had been raining that day, and the sidewalk was wet.  Defendant raised the defense of Labor Code section 3208.3(d), contesting that applicant had not been employed for six months, so psyche claim!

As the injury occurred in 2009, the requirement of this to be a “catastrophic” injury, as articulated in Labor Code section 4660.1(c), would not apply.  But what about the exception found in 3208.3(d) – was a wet sidewalk a “sudden” AND “extraordinary” condition?

Initially, the WCJ found that a wet sidewalk was not both sudden and extraordinary, but applicant appealed, and the split WCAB panel granted reconsideration.  The majority cited Matea v. WCAB (2006), reasoning that if lumber falling on a Home Depot employee constitutes a sudden and extraordinary employment condition, so could a slip on the sidewalk.  On page 9 of the majority opinion, the WCAB noted “defendant did not submit any evidence to show that applicant’s injury was a routine or ordinary employment condition… [a]pplicant testified he was surprised  by the slick surface of the walkway and did not expect it to be slippery because the other concrete walkways on the premises had a rough finish.”

The majority also cited SCIF v. WCAB (Garcia) a 2012 Court of Appeal decision previously discussed on this most humblest of blogs, for the proposition that the ultimate result of the injury should be considered in determining whether or not it was extraordinary.

By contrast, the dissenting opinion reasoned that a slip and fall “although unfortunate, is not the type of event that is totally unexpected; rather, it can be fairly described as a regular or routine occurrence.”

Let’s look at some of the similar cases we’ve seen which have discussed the “extraordinary” language of 3208.3

1. Burning one’s hand at the dry-cleaner facility was common enough so as not to be extraordinary;
2. Falling from a 24′ ladder as an avocado picker was not extraordinary;
3. A 250lb truss falling on a carpenter was not extraordinary;
4. A roofer falling from a roof was not extraordinary (Bajanjargal v. WCAB)

Your humble blogger, as predicted, is with the dissent on this one.  I would submit to you if your job were simply to be a human being, a slip and fall on a sidewalk, wet or otherwise, would not be an extraordinary employment condition.  Seriously, folks, just imagine that – a group of people gathered around a sidewalk, mesmerized by it being wet after rain, muttering to themselves “so extraordinary…”

But, not everyone agrees with your humble blogger…

Your humble blogger was recently at the board getting a take-nothing order following a catastrophic injury which resulted in total permanent disability (or was it just a walkthrough? So hard to remember…)  In any case, using his super-human ability to overhear conversations from five feet away, he picked up on the following case, and it’s an odd one at that.

So applicant (allegedly) sustains an injury, and then goes through the whole song and dance with the defense, which then works out a compromise and release agreement.  Everyone is on board and everyone is happy, and the agreement is put before a worker’s compensation Judge, who approves it.  Defendant sends out a check and applicant cashes it.  End of story, right?  Well, not so much.

The one missing detail in all of this was applicant’s signature.

That’s right – the defense and the Judge both overlooked the fact that applicant never signed the compromise and release.

So, four years later, applicant is calling his attorney wondering why he isn’t getting more money or medical treatment or unicorns and rainbows.  Oh, and by the way, defendant can’t get its money back because the money is gone — applicant had spent it and now wants more!

Now, dear readers, before you ask at which Board this occurred or which Judge approved the compromise and release, I remind you that your humble blogger does not name names (unless it’s to shame fraudsters).

But, realistically speaking, what is to be done in this situation?

The injured worker did not sign the Compromise and Release, but he did sign the check and spent the money.  On the other hand, the defense messed up – it submitted an unsigned Compromise and Release agreement.

We’ve seen a somewhat similar case, where a stolen and cashed check left the defendant paying double on an award,  but what’s to be done in cases like these?

Your humble blogger cornered one of the attorneys afterwards and demanded he spill as to the resolution of this case.  After trying to escape several times, he finally gave in and explained that the parties agreed to settle the claim by having the defense cough in another $1,500.  Hopefully, they will check to make sure the applicant signs the documents (and not just the check) this time before paying out.

I don’t know how this case would turn out on appeal (because that’s where it would be headed).  What do you think, dear readers?

The “going [to work] and coming [from work]” rule is a subject that surfaces now and then in the world of workers’ compensation.  After all, injuries can happen anywhere, so why not while going to or coming from work?

The defense generally provides that an employer is not liable for workers’ compensation benefits for injuries sustained in transit between home and work or work and play.  But the defense is not a stone wall, smooth and solid and impenetrable, but rather a chain-link fence, with plenty of gaps, patches, and weaknesses.

In the case of Jesus Felix Castro v. State of California, Department of Forestry and Fire Protection, applicant was a seasonal firefighter, who sustained a devastating injury as a result of a catastrophic car collision while he was on his way to work.  The attorney for the defense naturally raised the going and coming rule – on the way to work means on the way out of the California workers’ compensation system, generally speaking.

But the defense failed.

Applicant presented several witnesses, Mr. Castro’s co-workers, who testified to the effective requirement of bringing one’s own car to work.  There was more than one fire station to staff, and a firefighter never knew where he or she would end up working that day.  As such, employees had to bring their own car to work to get from Station A to Station B, as necessary.

The workers’ compensation Judge and the Workers’ Compensation Appeals Board both held that the injury was compensable.

Bear in mind, learned readers, this holding is not new or off-the-cuff.  This holding was also issued in Smith v. Workmen’s Comp. App. Bd. (1968) “Surely in this day of a highly motorize society we cannot cast the going and coming rule as a protective cloak over the shoulders of the employer who, for his own advantage, demands that the employee furnish the car on the job.”

But this case does serve to remind employers, especially those in the private sector, that there is no such thing as a free lunch – money saved in shifting the cost of the travel between work sites to the employee can cost a lot of money in the form of an otherwise barred workers’ compensation claim.

California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity.  Otherwise, “permanent total disability shall be determined in accordance with the fact.”

Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer.  However, applicant’s attorneys have a more “equitable” use for this section.

In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist.  The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.

Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault.  (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)

The WCJ, however, saw it differently:

“we all come to the job market with innate limitations.  It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for.  It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled.  If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”

The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.

Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English.  Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”

The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.

To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.

In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied).  We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.